劳动教养制度改革的理论探索

发布时间：2018-03-24 11:55

本文选题：劳动教养　切入点：法治　出处：《武汉大学》2004年硕士论文

【摘要】：去年广州发生的孙志刚案件,敲响了收容遣送制度的丧钟,由此引发了人们对保障人身自由问题的更加关注,同时这也给目前处境尴尬的劳动教养带来了制度创新的契机。劳动教养制度是我国在特色历史环境下的产物,经过近半个世纪的发展和演进,其存在的时空、适用对象和程序都发生了深刻的变化,与创设它的初衷渐行渐远。在依法治国、人权入宪的时代背景下,劳动教养制度的前途命运正考验着法学理论界和实务界人士的智慧。本文对劳动教养制度进行粗线条的历史回顾,试图从劳动教养的性质和收容对象这条线索去把握它的实质内容,努力探索它的内在缺陷。我们看到,劳动教养制度的历史是一个在当时政治话语下具有其存在的正当性,随着社会的发展,这种正当性又逐渐丧失的过程。现在劳动教养制度的合法性仅是一个技术性问题,其存在的合理性、功利性才是我们要从理论上加以阐释的焦点,这为我们理清劳动教养制度的改革思路奠定了基础。对于学者们提出的改革方案,本文对代表性观点的利弊得失一一进行了分析,认为劳动教养行政处罚化不合于现代法治与人权的基本要求,轻罪化又落于现行刑法功能缺陷之窠臼。本文认为,劳教制度的改革出路在于使其刑法化,即将现行的劳动教养改造为实现刑事责任的一种非刑罚方法纳入刑事制裁之中,刑法化的关键是引入正当的司法程序。而在所有的非刑法方法之中,保安处分是我们改革和完善劳动教养制度的必然选择。这不仅是完善我国刑法的需要,更是保障人权的迫切诉求。
[Abstract]:The case of Sun Zhigang in Guangzhou last year sounded the death knell of the system of asylum and deportation, which caused people to pay more attention to the issue of safeguarding personal freedom. At the same time, this has also brought an opportunity for institutional innovation in the awkward situation of re-education through labor. The system of re-education through labor is the product of our country's characteristic historical environment. After nearly half a century of development and evolution, its existence is space-time. The object and procedure of application have undergone profound changes, which are far away from the original intention of creating it. Under the background of governing the country according to law and human rights entering the constitution, The future and fate of the system of re-education through labor is testing the wisdom of the scholars in the field of legal theory and practice. This paper attempts to grasp the nature of reeducation through labor and the object of detention, and tries to explore its inherent defects. We can see that the history of the system of re-education through labor is a legitimate existence under the political discourse of that time. With the development of society, the legitimacy of the reeducation through labor system is only a technical problem. The rationality and utility of its existence are the focus of our theoretical interpretation. This has laid the foundation for us to clarify the reform thinking of the re-education through labor system. For the reform plan put forward by scholars, this paper analyzes the advantages and disadvantages of the representative views. The author thinks that the administrative punishment of reeducation through labor is not in accordance with the basic requirements of the modern rule of law and human rights, and the misdemeanor falls into the pattern of the functional defects of the present criminal law. The reform of reeducation through labour as a non-penal method to realize criminal responsibility is brought into the criminal sanction. The key to criminal punishment is the introduction of due process of justice, and among all the non-criminal methods, Security measures are the inevitable choice for us to reform and perfect the system of re-education through labor, which is not only the need of perfecting our criminal law, but also the urgent demand of protecting human rights.
【学位授予单位】：武汉大学
【学位级别】：硕士
【学位授予年份】：2004
【分类号】：D926.8

【共引文献】